WHY 2600 MAGAZINE IS NOT GOING ALL THE WAY TO THE SUPREME COURT WITH ITS DIGITAL MUSIC COPYRIGHT ACT CHALLENGE

For two years, online and print publisher 2600 Magazine: The Hacker Quarterly has battled in the federal courts for its right to publish the DeCSS code. The code, which was invented by a Norwegian teenager, is "open source," meaning that it is noncopyrighted and freely available to the public.

The code fosters a legitimate use--it allows DVD owners to play their DVDs on computers running the Linux operating system. On the flip side, it also allows owners, if they choose, to infringe the copyrights of DVD movies by copying them and distributing them over the Internet.

The magazine lost at both the trial and appellate levels, however. Thus, an order stopping it from publishing or even linking to the code still stands. And this week, the magazine's attorneys, from the nonprofit Electronic Frontier Foundation, announced that the magazine would not seek U.S. Supreme Court review of the order

The development, though disappointing to many, was not surprising. Even if the Court had granted review, 2600 Magazine would likely have lost its case. Overthrowing the DMCA through litigation seems highly unlikely right now. As a result, the magazine and other DMCA foes will have to turn to other strategies to attack the Act.

The suit against 2600 Magazine began in December 1999, when eight major motion picture studios brought an action in New York federal court, pursuant to the DMCA. Their suit challenged the magazine's right to publish an article containing the DeCSS computer code, and to link to the code elsewhere on the Internet.

The studios invoked the "anticircumvention" provision of the DMCA. That provision states that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title."

What does it mean to "circumvent" under the Act? The Act defines it this way: "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." The studios argued that using, publicizing, or even linking to the DeCSS code amounted to such a circumvention.

In August 2000, U.S. District Judge Lewis Kaplan, agreed, and ruled for the studios. He ordered 2600 Magazine to cease distributing copies of DeCSS on its website, and to stop linking to the DeCSS code.

As a result, other online news organizations similarly refrained from linking to DeCSS for fear that they, too, would be sued or even prosecuted. (Julie Hilden's earlier column on the suit for the site describes the potential "chilling effect.")

On appeal, two top cyberlaw attorneys and law professors - Lawrence Lessig and Kathleen Sullivan, Dean of the Stanford Law School - argued the case on behalf of the magazine. They pointed out that DeCSS was necessary to allow users' "fair use" of their legally purchased DVDs. Without the code, the DVDs would not be playable on Linux computers. They argued that the owners, under the "fair use" exception to the copyright laws, should have the right to play their DVDs on their machines.

But the appeals court was not persuaded. In November 2001, the Second Circuit Court of Appeals, in a 3-0 panel decision, upheld the order. It held that the code was protected by the First Amendment - effectively affirming a 1996 district court decision, Bernstein v. Department of State, which had held that source code had First Amendment protection.

But the Second Circuit also held that the DMCA was consistent with the First Amendment. It noted that the DMCA was "content-neutral" - that is, it applied to all DVDs regardless of what they contained - and thus did not target particular views or ideas. The court also held that the DMCA served a compelling interest in preventing massive piracy or, in the court's words, "instantaneous worldwide distribution of the copied material." And it agreed with the district court that "the evidence as to the impact of [the DMCA] on prospective fair users is scanty and fails adequately to address the issues."

In May 2002, the Second Circuit, sitting en banc, hammered the final nail in the coffin and said that it would not revisit its earlier decision.

In so ruling, the Second Circuit joined the many other federal courts that have been resistant to efforts to contest the constitutionality of the DMCA.

Last year, for example a federal district judge dismissed Princeton University professor Ed Felten's challenge to the DMCA. (Felten, like 2600 Magazine, was represented pro bono by the EFF.)

In April 2001, the recording industry (RIAA) had told Felten that if he published his work at a conference he would violate the DMCA and face criminal prosecution. Felten, with the help of EFF, sued the RIAA, arguing that application of the law in this instance would violate the First Amendment. The Department of Justice (DOJ) moved to dismiss, and so did the RIAA; both prevailed on their motions, and Felten lost his suit.

Then in May of this year, a California district court allowed a DMCA prosecution to go forward despite First Amendment challenge. The prosecution, which I described in an earlier column, had been brought against Russian software maker Elcomsoft and its employee Dmitry Sklyarov. They were charged with selling a program that decrypts the copy protection on ebooks, and thus allegedly violating the DMCA's "anticircumvention" provision.

Meanwhile, in a series of rulings, the music labels successfully used the DMCA to cow Napster into submission. Two years ago they also managed to sue iCraveTV--a Canadian company that enabled a live online feed to broadcast TV stations - and Scour.net - a site that allowed users to share movie and multimedia files - into bankruptcy.

At this point, there seems little question that the DMCA has had the effect of stifling legitimate speech by journalists, scientists, publishers and programmers. Nevertheless, Hollywood and the music industry have been very successful enforcing the DMCA in federal courts, and the opposition forces have not won a single case challenging the Act on First Amendment grounds.

(In a case now pending before the California Supreme Court, a California state appeals court recently overturned a lower court preliminary injunction against publication of the DeCSS software based on the publisher's First Amendment rights. However, the case against the defendant was brought under California's version of the Uniform Trade Secrets Act, not the DMCA.)

A Better Test Case, or A Different Strategy Altogether?

From the sound of their press release on the DeCSS case, it seems that the EFF is looking for a better test case to come along. EFF Legal Director Cindy Cohn states, "Later cases will provide a better foundation for the Supreme Court to act on the problems created by the [DMCA]." But perhaps rather than waiting for a better test case, the EFF and other DMCA challengers should change tactics entirely, at least for the moment.

In the future, increased technological protection against circumvention in consumer products issued by the entertainment industry may incense consumers. Consumers may be very annoyed, for example, if they are prevented from copying a CD that they lawfully purchased so that they can play it in their car. As a result, public opinion and, for that matter, judicial opinion may well someday shift against the entertainment industry and in favor of the public's right to fair use. At that point, a new test case may have the winds of change behind it.

This fall, the Supreme Court will hear a case that may act as a good weathervane for how future DMCA challenges might fare. The case challenges the Sonny Bono Copyright Extension Act, which extended copyright ownership by twenty years, and thus dramatically delayed the time at which many works will fall into the public domain.

The case pits the entertainment industry and its desire to reap profits from its copyrights against the public's right to use public domain work even though it was once copyrighted. If the challengers win, and the Act is struck down, that may indicate it is time for a new DMCA test cast, too. If not, the EFF may have to wait even longer than it has so far for a court victory.

Of course, another option for the EFF is to convince Congress to amend the DMCA so that fair use is protected. But this seems highly unlikely, given all the entertainment industry lobbyists arguing to leave the DMCA as is, and the fact that inertia favors the lobbyists.

Therefore, EFF's best option for the moment may be to pursue other Internet First Amendment and privacy issues, and put the DMCA on the back burner for the moment. Perhaps if the EFF waits until public opinion is on its side, it will enjoy the court victory that so far has been elusive.

Laura Hodes, a 2000 graduate of the University of Chicago Law School and a frequent FindLaw guest columnist and book reviewer, is an attorney and freelance writer living in Chicago. Her work can be found on this site's guest columns archive, as well as in Slate and The New Republic Online.